Corps Letter Clarifies JDs for Wetlands Permits

The U.S. Army Corps of Engineers this week issued a Regulatory Guidance Letter in response to the U.S. Supreme Court’s decision in Hawkes v. United States.

In that decision, the court said that a jurisdictional determination—in which the Corps decides whether a piece of land should be subject to federal oversight under the Clean Water Act—is something that a developer can take to court.

The guidance letter clarifies the differences between the two kinds of jurisdictional determinations and how builders and developers can obtain them.

Jurisdictional determinations are important because developers have no way of knowing whether a feature is jurisdictional simply by looking at it. However, once the Corps issues a jurisdictional determination, it carries significant legal and financial consequences on everything from lending practices to state rules and regulations.

The Supreme Court said in Hawkes that when the Corps determines the precise boundaries of jurisdictional waters on a landowner’s property, that landowner can dispute the determination in court.

The new guidance—the first of its kind issued by the Obama Administration—accepts the Supreme Court decision and provides guidance to the Corps’ staff (and public) explaining when it is appropriate to issue an approved jurisdictional determination or preliminary jurisdictional determinations or not make any determination at all.

The Corps guidance explains that approved jurisdictional determinations are official determinations that jurisdictional waters exist on one’s property, while preliminary jurisdictional determinations are not legally binding. Finally, the guidance provides the forms that property owners are to use when requesting that the Corps conduct an approved jurisdictional determination or preliminary jurisdictional determinations.

New Emissions Standards for Heavy-Duty Trucks, Trailers

The Environmental Protection Agency and the Department of Transportation have finalized standards for medium- and heavy-duty vehicles in an effort to improve fuel efficiency and cut carbon pollution.

The standards, which apply to trucks built in model years 2021-2027, are expected to lower carbon dioxide emissions by 1.1 billion metric tons, save vehicle owners $170 billion in fuel, and reduce oil consumption by up to 2 billion barrels over the lifetime of the vehicles sold.

Heavy-duty trucks account for about 20% of greenhouse gas emissions and oil use in the transportation sector, according to Environmental Protection Agency.

The standards apply to semi-trucks, large pickup trucks and vans, and all types and sizes of buses and work trucks.

And for the first time, the agencies are finalizing fuel-efficiency and greenhouse gas standards for trailers. Cost-effective technologies for trailers – including aerodynamic devices, lightweight construction and self-inflating tires – can significantly reduce total fuel consumption by tractor-trailers, while paying back the owners in less than two years due to the fuel saved.

Recognizing that many trailer manufacturers are small businesses, Environmental Protection Agency has included provisions that reduce burden, such as a one-year delay in initial standards for small businesses and simplified certification requirements.

Today’s final rulemaking builds on the fuel efficiency and emissions standards already in place for model years 2014-2018, which are expected to result in carbon dioxide emission reductions of 270 million metric tons and save vehicle owners more than $50 billion in fuel costs, according to Environmental Protection Agency. Truck sales were up in model years 2014 and 2015, the years covered under the first round of truck standards.

For more details on the new standards for medium- and heavy-duty vehicles, visit the EPA website.

EPA finalizes new ground-level ozone standard

The Environmental Protection Agency (EPA) has met its court-ordered Oct. 1 deadline for final revisions to the Ozone National Ambient Air Quality Standards (NAAQS). In the final rule, EPA tightened the ozone standard to 70 parts per billion (ppb) from the current level of 75 ppb.

Your Home Builders Association joined the National Association of Home Builders and nearly a dozen other state and local HBAs to submit comments on the proposed rule, urging the agency to maintain the current standard. Tighter limits can lead to job loss and hurt local economies as jurisdictions are forced to curb air pollution levels through tighter limits on diesel emissions — potentially curtailing home building and development — cutbacks in manufacturing and other sources and through more stringent auto emissions testing.

Among issues highlighted in those comments was the fact that the current 2008 standard is still being implemented. Any revision to the standard will greatly enlarge the number of affected areas throughout the country.

EPA originally proposed revising the standard on a range from 65-70 ppb. The final decision by the Administrator concluded that a standard of 70 ppb will provide the adequate margin of safety the law requires.



Impact on the Upstate
In the Upstate the new standard should have little, if any impact.  The region is in compliance with both the existing and the new standard.  Unless pollution levels change significantly, the Upstate has dodged a bullet with this new rule.

This decision mitigates the potential impact of the proposed rule in some areas, but will still broaden the impact of the regulation both in states with experience implementing the ozone standard and in newly affected states.

Indeed, as NAHBNow recently reported, 13 areas determined by EPA to be in compliance with the 2008 standard will likely now be deemed out of compliance with the revised 2015 standard.

According to EPA, the estimated costs of implementing the regulation will be $1.4 billion with estimated public health benefits ranging from $2.9 to 5.9 billion annually in 2025. As a result, the net benefits for the final rule range from $1.5 to $4.5 billion nationwide, except for California, which EPA analyzed separately because areas in the state are not required to meet the existing standard by 2025 and may not be required to meet a revised standard until sometime between 2032 and 2037, and where the net benefits are estimated at $0.4 to $1.3 billion.

Waters of the US: All of Your Questions Answered (And Why the EPA Has it Wrong)

“As you extend the definition of ‘Waters of the U.S.’ to streams that only flow after it rains and isolated ponds and drainage ditches, you extend the areas in which home builders are required to get permits,” leading to bureaucratic delays, additional expenses and ultimate, more expensive homes. Learn more in this interview with NAHB Environmental Policy Program Manager Owen McDonough and National Association of Counties Legislative Director Julie Ufner.

More Questions
The U.S. Small Business Administration (SBA) has joined the throng of home builders, farmers and elected officials asking the Environmental Protection Agency to drop its proposed definitions for waters of the U.S., citing the disproportionate effect of the rule on small businesses.

It’s a situation that could have been avoided all together had the agency done what it was supposed to do in the first place: Have the SBA review the rule before releasing it to the public.

The new definitions could encompass land near bodies of water previously under the jurisdiction of states and counties – or in the case of some drainage ditches or upland bodies of water, not jurisdictional at all under the Clean Water Act.

SBA is “extremely concerned about the rule as proposed. The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact,” said SBA Chief Counsel for Advocacy Winslow Sargeant, PhD., in an Oct. 1 letter to EPA Administrator Gina McCarthy.

On Oct. 14, Rep. Bob Goodlatte (R.-Va) wrote an op-ed in The News Virginian, saying, “The impact of the Waters of the U.S. rule on farmers, landowners, local economies, and jobs is very real. Protecting America’s waterways is critical, but continued power grabs by the EPA is not the solution. This should be a collaborative approach – not a mandate or murky definition from the EPA.”

On Wednesday, two NAHB members – builders from Louisiana and Maryland – were scheduled to visit the EPA offices in Washington to talk about the effects of the proposed rule on their businesses – as well as the expected eventual costs, by extension, to home buyers. The EPA invitation is appreciated, said NAHB Environmental Policy Analyst Owen McDonough, but it’s like shutting the proverbial gate after the horse has galloped away.

“EPA may have questions about how the rule will affect home builders and developers, but they were obligated to ask those questions before they proposed these new definitions,” McDonough said.

Army Corps: Walnut Trees are a Wetland Species

The U.S. Army Corps of Engineers has a number of ways to determine whether a particular piece of property should be classified as a wetland, and potentially subject to regulation under the Clean Water Act.

One of them is to see what sorts of grasses, sedges, trees and other vegetation is growing on the property – and while cattails might be a dead giveaway, other plants might not seem so obvious.

But when the Corps decides that a walnut tree native to the hills of arid Southern California is a sign of a wetland, according to the National Wetlands Plant List, something’s a little haywire.

That’s why, with the help of expert consulting botanists, your Home Builders Association questioned the Corps’ determination. The good news? The association found out in May that its challenge, along with a similar request to change the rating for Japanese honeysuckle in other parts of the country, had been successful. The bad news? There are 8,055 challenges to go.

And unlike most other regulatory changes, the Corps can update the Plant List without going through the usual public notice and comment period. The list is updated at the Corps’ discretion and the changes appear online.

“This is a problem,” said NAHB Environmental Issues Committee Chair Charles “Chuck” Ellison, a builder in the Washington D.C. area and Delaware. “We need to know whether the decision to put a plant on the list is based on sound science. The process must be transparent.”

The committee is seeking the help of members whose projects have run afoul of the Plant List and will discuss its options during the National Association of Home Builders Fall Board of Directors meeting in Phoenix Sept. 3-6. For additional information, talk to Owen McDonough at 202-266-8662 or call Michael Dey at 864-254-0133.

U.S. Supreme Court Accepts NAHB Petition to Hear Greenhouse Gas Case

The U.S. Supreme Court on October 15 agreed to hear a petition brought by NAHB and other organizations that would determine whether the Environmental Protection Agency (EPA) has the authority under the Clean Air Act to regulate greenhouse gas emissions from stationary sources that could include everything from factories, refineries and power plants to apartment and commercial buildings.

"Because of the way EPA has interpreted the statute, many NAHB members could be forced to obtain an expensive pre-construction permit for greenhouse gas emissions, which would bring most multifamily and mixed use development to a standstill," NAHB Chairman Rick Judson said in a press statement. "Some single-family and potentially even master-planned community development could also be affected," he said.

Based largely on EPA’s own estimates, the cost of the permit alone could be about $60,000 per multifamily property, with costs due to delays averaging about $40,000 across all building sizes. For a property with 50 or more apartments, costs due to delays could reach up to $200,000.

The permit cost is fixed, while the delay costs vary depending on the building size, measured by number of units.

NAHB is part of a coalition that includes the American Chemistry Council, American Petroleum Institute, National Association of Manufacturers, American Fuel and Petrochemical Manufacturers and National Oilseed Processors Association. Briefing in this case, American Chemistry Council (ACC), et al. v. U.S. Environmental Protection Agency, will take place during the fall and winter. The oral arguments will be held in February 2014, and a decision is expected in late spring 2014.

South Carolina and North Carolina end Water Dispute

South Carolina and North Carolina have ended a lawsuit over water withdrawal from the Catawba-Wateree River Basin and agreed to a joint plan to regulate water withdrawal from the river. The dispute involved a proposed withdrawal of water from the Catawba River by a North Carolina city that is in a different river basin, commonly referred to as an "inter-basin transfer."

The lawsuit, and the settlement, could have long-term implications for the Upstate. The Greenville area, which is in the Saluda-Reedy River basin, withdraws water from Lake Keowee, a part of the Savannah River basin.

Read the full report on the settlement at GSA Business.

New FEMA Rules Shift ESA Consultation Requirements to Developers

The Federal Emergency Management Agency (FEMA) on Oct. 1 enacted new rules that apply to many developers in flood-prone areas that provide habitat for threatened and endangered species. The new rules, contained in Procedure Memorandum 64, were issued in response to several successful lawsuits by environmental groups against FEMA for not appropriately considering its responsibilities under the Endangered Species Act (ESA) when allowing development to take place. Now, FEMA is shifting those responsibilities to the landowners themselves.

When a project is proposed for a parcel of land within a floodplain, FEMA can issue a Conditional Letter of Map Revision (CLOMR) to state that the project, if built as proposed, would sufficiently modify the floodway, base-flow elevation and/or 100-year floodplain as shown on FEMA's Flood Insurance Rate Maps. Similarly, a Conditional Letter of Map Revision based on Fill (CLOMR-F) is used by FEMA when the parcel or proposed structure will be elevated by fill material to be above the base, 100-year floodplain.

The change indicated by Procedure Memorandum 64, requiring private landowners to provide proof that they are complying with the provisions of the Endangered Species Act before making any requests of FEMA, will likely add time and expense to any project in which property owners need flood map revisions to move forward, because they may first need to complete the Section 7 or Section 10 permit process. The Section 7 process can take 90 to 135 days to complete, while the Section 10 permit process can take about two years.

Going forward, NAHB will be adding clarifying information on this issue to our ESA section of NAHB.org, and we are reaching out to both FEMA and the Fish and Wildlife Service to discuss the implications of FEMA's memorandum.

Read more in Nation's Building News, or contact Matt Watkins (800-368-5242, x8327) for more information.

NAHB Lawsuit Successfully Defeats EPA Stormwater Rule

A lawsuit filed by the National Association of Home Builders (NAHB) and the Wisconsin Builders Association has forced the U.S. Environmental Protection Agency (EPA) to withdraw a key portion of its new stormwater management regulations affecting builders and developers. According to NAHB, EPA will have to go back to the drawing board on the numeric limit for sediment it developed and attempted to enforce.

Read the article about this legal victory in Nation's Building News by clicking here.